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This is a Bill, not an Act. For current law, see the Acts databases.
1998-1999-2000
The Parliament
of the
Commonwealth of
Australia
HOUSE OF
REPRESENTATIVES
Presented and read a first
time
Occupational Health and
Safety (Commonwealth Employment) Amendment Bill
2000
No. ,
2000
(Employment, Workplace Relations and Small
Business)
A Bill for an Act to amend the
Occupational Health and Safety (Commonwealth Employment) Act 1991, and
for related purposes
ISBN: 0642 463883
Contents
Part 1—Amendments 3
Part 2—Transitional, application and saving
provisions 49
Division 1—Provisions relating to employers’
duties 49
Division 2—Provisions relating to workplace
arrangements 50
Division 3—Miscellaneous
provisions 52
A Bill for an Act to amend the Occupational Health
and Safety (Commonwealth Employment) Act 1991, and for related
purposes
The Parliament of Australia enacts:
This Act may be cited as the Occupational Health and Safety
(Commonwealth Employment) Amendment Act 2000.
(1) Subject to this section, this Act commences on the 28th day after the
day on which it receives the Royal Assent.
(2) If item 300 of Schedule 2 to the Criminal Code Amendment
(Theft, Fraud, Bribery and Related Offences) Act 2000 has commenced before
the day on which this Act commences under subsection (1), item 77 of
Schedule 1 to this Act does not commence.
Subject to section 2, each Act that is specified in a Schedule to
this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
1 At the end of
section 3
Add:
; and (f) to encourage and assist employers, employees and other persons
on whom obligations are imposed under the Act to observe those obligations;
and
(g) to provide for effective remedies if obligations are not met, through
the use of civil remedies and, in serious cases, criminal sanctions.
2 Subsection 5(1) (definition of annual
report of the Commission)
Omit “Commonwealth Employees’ Rehabilitation and
Compensation Act 1988”, substitute “Safety, Rehabilitation
and Compensation Act 1988”.
3 Subsection 5(1) (definition of
Comcare)
Omit “Commonwealth Employees’ Rehabilitation and
Compensation Act 1988”, substitute “Safety, Rehabilitation
and Compensation Act 1988”.
4 Subsection 5(1) (definition of
Commission)
Omit “Commission for the Safety, Rehabilitation and Compensation of
Commonwealth Employees”, substitute “Safety, Rehabilitation and
Compensation Commission”.
5 Subsection 5(1) (definition of
Commission)
Omit “Commonwealth Employees’ Rehabilitation and
Compensation Act 1988”, substitute “Safety, Rehabilitation
and Compensation Act 1988”.
6 Subsection 5(1) (definition of
contractor)
Repeal the definition, substitute:
contractor means:
(a) a natural person, other than a person who is employed by the
Commonwealth or by a Commonwealth authority, who performs work on Commonwealth
premises in connection with a contract between:
(i) the Commonwealth or a Commonwealth authority; and
(ii) that person or another person (whether a natural person or
not);
which is in connection with an undertaking being carried on by the
Commonwealth or the authority which is a party to the contract; and
(b) in section 14—a natural person as described in
paragraph (a) and also includes a body corporate, other than a Commonwealth
authority, that performs work on Commonwealth premises in connection with a
contract between:
(i) the Commonwealth or a Commonwealth authority; and
(ii) that body corporate or another person (whether a natural person or
not);
which is in connection with an undertaking being carried on by the
Commonwealth or the authority which is a party to the contract.
7 Subsection 5(1) (subparagraph (a)(i) of
the definition of Government business enterprise)
Omit “the Schedule”, substitute
“Schedule 1”.
8 Subsection 5(1)
Insert:
involved: a person is involved in a breach of a provision if,
and only if, the person has:
(a) aided, abetted, counselled or procured the breach; or
(b) has induced, whether by threats or promises or otherwise, the breach;
or
(c) has been in any way, by act or omission, directly or indirectly,
knowingly concerned in or party to the breach; or
(d) has conspired with others to effect the breach.
9 Subsection 5(1) (definition of involved
union)
Repeal the definition.
10 Subsection 5(1) (definition of registered
union)
Repeal the definition.
11 Subsection 5(1)
Insert:
representative association has the meaning given in
subsections (2A) and (2B).
12 Subsection 5(1)
Insert:
safety management arrangements means the safety management
arrangements referred to in paragraph 16(2)(d).
13 Subsection 5(1)
Insert:
workplace association representative means an employee at a
workplace who is authorised by a representative association to represent the
association in that workplace.
14 After subsection 5(2)
Insert:
(2A) An association is a representative association in
relation to an employee performing work for his or her employer at a particular
workplace if:
(a) the association is an association of employees with a principal
purpose of protecting and promoting the industrial interests of its members;
and
(b) the employee is a member of the association and is qualified for
membership because of the work the employee usually performs as an employee of
the employer.
(2B) An association is a representative association in
relation to a designated work group at a particular workplace if:
(a) the association is an association of employees with a principal
purpose of protecting and promoting the industrial interests of its members;
and
(b) an employee included in the group is a member of the association and
is qualified for membership because of the work the employee usually performs as
an employee included in the group.
15 Subsection 5(3A)
Omit “Commonwealth Employees’ Rehabilitation and
Compensation Act 1988”, substitute “Safety, Rehabilitation
and Compensation Act 1988”.
16 Subsection 5(6)
Repeal the subsection, substitute:
(6) A reference in this Act to a breach of this Act or to a breach of the
regulations includes, where the breach is an offence, a reference to an offence
against:
(a) section 6, 7 or 7A of the Crimes Act 1914; or
(b) subsection 86(1) of that Act by virtue of paragraph (a) of that
subsection;
being an offence that relates to the breach.
17 Subsections 11(2) and
(3)
Repeal the subsections, substitute:
(2) Nothing in this Act has the effect of making the Commonwealth or a
Commonwealth authority (other than a Government business enterprise):
(a) subject to proceedings for a contravention of subclause 2(1) of
Schedule 2; or
(b) liable to be prosecuted for an offence; or
(c) liable to pay any fine or penalty under the Act or the
regulations.
Note: A court may instead enforce undertakings under
clause 14 of Schedule 2, grant an injunction under section 77A or
make remedial orders under section 77B.
(3) Subsection (2) does not prevent the following:
(a) a person who is employed by the Commonwealth;
(b) a person who is employed by a Commonwealth authority (including a
Government business enterprise);
(c) a Government business enterprise;
from being:
(d) subject to proceedings for a contravention of subclause 2(1) of
Schedule 2; or
(e) liable to be prosecuted for an offence; or
(f) liable to pay any fine or penalty under the Act or the
regulations.
18 Subsection 12(1)
Omit “Commonwealth Employees’ Rehabilitation and
Compensation Act 1988”, substitute “Safety, Rehabilitation
and Compensation Act 1988”.
19 Paragraph 12(1)(b)
Omit “, either on its own initiative or on request,”.
20 At the end of paragraph
12(1)(b)
Add “(including the matters that should be covered by safety
management arrangements)”.
21 At the end of subsection
12(1)
Add:
; (h) to issue any directions that the Commission considers, on reasonable
grounds, to be appropriate to employers on the conduct of elections under
section 25A for health and safety representatives.
22 At the end of subsection
14(1)
Add:
Note: For the meaning of contractor, see
subsection 5(1).
23 At the end of
Part 1
Add:
The Criminal Code applies to all offences against this
Act.
24 Subsection 16(1)
(penalty)
Repeal the penalty.
25 At the end of subsection
16(1)
Add:
Note: An employer who breaches subsection (1) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
26 Subsection 16(2)
Omit “contravenes”, substitute
“breaches”.
27 Paragraph 16(2)(d)
Repeal the paragraph, substitute:
(d) to develop, in consultation with the employees of the employer, safety
management arrangements that will:
(i) enable effective co-operation between the employer and the employees
in promoting and developing measures to ensure the employees’ health,
safety and welfare at work; and
(ii) provide adequate mechanisms for informing the employees about the
arrangements; and
(iii) provide adequate mechanisms for reviewing the effectiveness of the
arrangements; and
(iv) provide adequate mechanisms for the variation of the arrangements in
consultation with the employees; and
(v) provide for a dispute resolution mechanism to deal with disputes
arising in the course of consultations held under this Act (other than
section 24) between the employer and the employees; and
(vi) in the case of an employer who is required under section 34 to
establish a health and safety committee—provide for the manner in which
the health and safety committee is to be established and is to operate;
and
28 Subsection 16(3)
Repeal the subsection.
29 Subsection 16(5)
Omit “contravenes”, substitute
“breaches”.
30 After section 16
Insert:
(1) In developing or varying safety management arrangements, an employer
must have regard to any advice of the Commission on the matter (whether the
advice has been given to that employer, or to employers generally).
(2) An employee of an employer who is holding consultations to develop or
vary safety management arrangements may choose to be represented in the
consultations by another employee of the employer.
(3) Alternatively, the employee may request representation in the
consultations by:
(a) an officer or employee of the employee’s representative
association; or
(b) a person authorised under the rules of such an association;
if there is no workplace association representative at the employee’s
workplace.
(4) To avoid doubt, if a representative association is involved in
consultations, this does not prevent employees who choose to be involved, or
representative employees as mentioned in subsection (2), from being
involved in the consultations.
(1) If the Chief Executive Officer of Comcare considers, on application by
a representative association, that an employee has requested the representative
association to be involved in consultations held by an employer in the course of
developing or varying safety management arrangements, the Chief Executive
Officer may issue a certificate to that effect.
(2) The application must be in the prescribed form.
(3) The certificate must not identify any of the employees concerned.
However, it must identify the association, the employer and the proposed
consultations.
(4) The certificate ceases to have effect at the earlier of:
(a) the time when the Chief Executive Officer of Comcare considers that
each of the employees who requested to be represented by the association in
consultations identified by the certificate has requested that the certificate
cease to have effect; and
(b) the end of the 12 month period that started when the certificate was
issued.
(5) If a certificate ceases to have effect under paragraph (4)(a),
the Chief Executive Officer of Comcare must notify the association, and the
employer, in writing.
(6) A certificate is, for all purposes of this Act, prima facie evidence
of the matters stated in it.
31 Section 17
(penalty)
Repeal the penalty.
32 At the end of
section 17
Add:
Note: An employer who breaches section 17 may be
subject to civil action or a criminal prosecution (see
Schedule 2).
33 Subsection 18(1)
(penalty)
Repeal the penalty.
34 At the end of subsection
18(1)
Add:
Note: A manufacturer who breaches subsection (1) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
35 Subsection 18(2)
(penalty)
Repeal the penalty.
36 At the end of subsection
18(2)
Add:
Note: A manufacturer who breaches subsection (2) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
37 Subsection 19(1)
(penalty)
Repeal the penalty.
38 At the end of subsection
19(1)
Add:
Note: A supplier who breaches subsection (1) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
39 Subsection 20(1)
Repeal the subsection (including the penalty), substitute:
(1) A person who erects or installs any plant in a workplace for the use
of employees at work must take all reasonably practicable steps to ensure that
the plant is not erected or installed in such a manner that:
(a) the plant is unsafe for, or constitutes a risk to the health of,
employees at the workplace where the plant is erected or installed; or
(b) the process of erection or installation is unsafe for, or constitutes
a risk to the health of, employees at the workplace where the plant is erected
or installed.
Note: A person who breaches subsection (1) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
40 Subsection 21(1)
(penalty)
Repeal the penalty.
41 At the end of subsection
21(1)
Add:
Note: An employee who breaches subsection (1) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
42 Paragraph 21(2)(a)
Repeal the paragraph, substitute:
(a) agreed on between the employer and employees (or their representatives
under subsection 16A(2), (3) or (4)) of the employer; or
43 Subsections 24(1) to (3)
Repeal the subsections, substitute:
(1) An employee may request his or her employer to:
(a) establish designated work groups in respect of employees of the
employer; or
(b) vary designated work groups that have already been
established.
(2) The employer must, within 14 days after receiving such a request,
enter into consultations with the employer’s employees to establish or
vary (as the case requires) designated work groups.
(3) If an employer believes that designated work groups should be varied,
the employer may at any time enter into consultations about the variation
with:
(a) the health and safety representative of each designated work group
proposed to be varied; and
(b) if an employee in a designated work group proposed to be varied so
requests—a representative association in relation to the
employee.
44 After section 24
Insert:
For the purposes of this Act, consultations under section 24 are
taken to be consultations to develop safety management arrangements. However,
for the purposes of developing safety management arrangements as described in
paragraph 16(2)(d), it is not sufficient for an employer merely to hold
consultations under section 24.
(1) An employer must:
(a) prepare and keep up to date a list of all designated work groups
comprising employees performing work for the employer; and
(b) ensure that the list is available for inspection by investigators and
the employees at all reasonable times.
(2) The list must describe the categories of employees included in each
designated work group.
45 Subsections 25(4) to
(10)
Repeal the subsections, substitute:
(4) If a person is selected as the health and safety representative for a
designated work group under paragraph (3)(a), the person must inform the
employer of the employees in the group of this fact as soon as practicable after
the selection is made.
Note: The heading to section 25 is replaced by the
heading “Selection of health and safety
representatives”.
46 After section 25
Insert:
(1) If:
(a) there is a vacancy in the office of health and safety representative
for a designated work group; and
(b) within a reasonable time after the vacancy occurs, a person has not
been selected under paragraph 25(3)(a);
the employer of the employees in the designated work group must invite
nominations for election as the health and safety representative of the
group.
(2) If the office of health and safety representative is vacant and the
employer has not invited nominations within a reasonable time, the Commission
may direct the employer to do so.
(3) If there is more than one candidate for election at the close of the
nomination period, the employer must conduct, or arrange for the conduct of, an
election at the employer’s expense.
(4) If there is only one candidate for election at the close of the
nomination period, that person is taken to have been elected.
(5) A person cannot be a candidate in the election if he or she is
disqualified under section 32.
(6) All the employees in the designated work group are entitled to vote in
the election.
(7) An employer conducting or arranging for the conduct of an election
under this section must comply with any relevant directions issued by the
Commission.
An employer must:
(a) prepare and keep up to date a list of all the health and safety
representatives of designated work groups comprising employees performing work
for the employer; and
(b) ensure that the list is available for inspection by investigators and
the employees at all reasonable times.
The employer of employees in a designated work group must:
(a) notify those employees of a vacancy in the office of health and safety
representative for the designated work group within a reasonable time after the
vacancy arises; and
(b) notify those employees of the name of any person selected (whether
under paragraph 25(3)(a) or 25(3)(b)) as health and safety representative for
the designated work group within a reasonable time after the selection is
made.
47 Section 26
Repeal the section, substitute:
(1) A health and safety representative for a designated work group holds
office for the period specified in the safety management arrangements applying
to the employees in the designated work group, but is eligible to be selected
for further terms of office.
(2) If a period is not specified in safety management arrangements
applying to the designated work group, the term of office is 2 years.
(3) This section is subject to sections 26A and 31.
If a person (the retiring representative) ceases to hold
office as a health and safety representative before the end of the
person’s term of office, the person selected to fill the vacancy holds
office:
(a) if the vacancy occurred more than 6 months before the retiring
representative’s term of office ended—for the remainder of the
retiring representative’s term; and
(b) if the vacancy occurred within the period of 6 months before the
retiring representative’s term of office ended—for the remainder of
the retiring representative’s term and for the next term of
office.
48 Subparagraph
28(1)(a)(ii)
Omit “or to”, substitute “, to Comcare or
to”.
49 Section 29
Omit “contravening” (wherever occurring), substitute
“breaching”.
50 Paragraph 29(1)(b)
Omit “contravened”, substitute
“breached”.
51 Section 29
Omit “contravene” (wherever occurring), substitute
“breach”.
52 Section 29
Omit “contravention” (wherever occurring), substitute
“breach”.
53 After subsection 29(3)
Insert:
(3A) The notice has effect as soon as it is given to a person in
accordance with subsection (2) or (3).
54 Subsection 29(8)
Omit “the Commission”, substitute
“Comcare”.
55 Subsection 29(9)
Omit “Upon the request being made”, substitute “When a
request is made under subsection (8)”.
56 After subsection 29(9)
Insert:
(9A) The health and safety representative may request Comcare or an
investigator to investigate a matter that is the subject of a notice
if:
(a) the responsible person has not complied with the notice within the
period specified in the notice (including any extensions); and
(b) an investigation has not been requested under
subsection (8).
57 Subsection 29(10)
After “a request” insert “(under subsection (8) or
(9A))”.
58 After paragraph 31(1)(b)
Insert:
(ba) the designated work group is varied under subsection 24(6) and the
variation results in a change to the membership of the group; or
59 Subsections 31(2) to (4)
Repeal the subsections, substitute:
(2) A person may resign as the health and safety representative for a
designated work group by notice in writing delivered to the employer of the
employees in the group.
(3) If a person resigns as the health and safety representative for a
designated work group, the person must notify the employees included in the
group of the resignation.
60 Subsection 32(1)
Omit “or by an involved union”, substitute “or, at the
request of an employee in the designated work group, by a representative
association”.
61 After subsection 33(2)
Insert:
(2A) If an election for a deputy health and safety representative is to be
held, the employer of the employees in the designated work group must invite
nominations for election.
(2B) Subsections 25A(3), (4), (6) and (7) apply to the election.
Note 1: Subsections 25A(1) and (2) do not apply in relation
to deputy health and safety representatives because the selection of a deputy is
optional, not required, for each designated work group.
Note 2: Subsection 25A(5) does not apply in relation to
deputy health and safety representatives because only health and safety
representatives can be disqualified under section 32.
62 Section 34
Repeal the section, substitute:
(1) An employer must establish a health and safety committee in respect of
the employer’s employees if the number of the employer’s employees
is normally not less than 50.
(2) An employer must also establish a health and safety committee in
respect of the employer’s employees in a particular State or Territory
if:
(a) the number of the employer’s employees in the State or Territory
is normally not less than 50; and
(b) a health and safety representative of a designated work group
comprising employees performing work for the employer in the State or Territory
gives a written request to the employer asking the employer to establish such a
committee; and
(c) the request is reasonable.
(3) A health and safety committee established under subsection (1) or
(2) is to operate in accordance with the safety management arrangements applying
to the employer’s employees.
(4) Nothing in this section prevents an employer from establishing, in
consultation with its employees or any other persons:
(a) subcommittees of a health and safety committee; or
(b) committees concerned with occupational health and safety in relation
to undertakings carried on by the employer; or
(c) other committees concerned, in whole or in part, with occupational
health and safety.
63 Subsection 37(3)
Omit “the Commission”, substitute
“Comcare”.
64 Section 39
Repeal the section, substitute:
Comcare may advise employers, employees or contractors, either on its own
initiative or on request, on occupational health and safety matters affecting
those employers, employees or contractors.
If:
(a) Comcare has been requested to advise an employer, employee or
contractor about an occupational health and safety matter; and
(b) Comcare considers that a person other than a member of the staff of,
or a consultant to, Comcare has special knowledge or experience relevant to the
request;
Comcare may refer the employer, employee or contractor to the
person.
65 Paragraph 41(1)(b)
Omit “contravention” (wherever occurring), substitute
“breach”.
66 Subsection 41(2)
Omit “The Commission”, substitute “Comcare or the
Commission”.
67 Paragraph 41(2)(b)
Omit “contravention” (wherever occurring), substitute
“breach”.
68 Subsection 41(2)
Omit all the words from and including “must”,
substitute:
must conduct an investigation accordingly, unless:
(d) in the case of a direction given by Comcare—Comcare or the
Commission revokes the direction; or
(e) in the case of a direction given by the Commission—the
Commission revokes the direction.
69 Subsection 41(3)
Omit “The Commission”, substitute “Comcare or the
Commission”.
70 Subsection 41(3)
Omit all the words from and including “must”,
substitute:
must conduct an investigation accordingly, unless:
(a) in the case of a direction given by Comcare—Comcare or the
Commission revokes the direction; or
(b) in the case of a direction given by the Commission—the
Commission revokes the direction.
71 Subsection 41(4)
Omit “Before giving a direction under subsection (3), the
Commission”, substitute “Before Comcare or the Commission gives a
direction under subsection (3), the body about to give the
direction”.
72 Subsection 41(5)
Omit “An involved union may”, substitute “A
representative association may, if requested by an employee,”.
73 Subsection 41(5)
Omit “an investigator or to the Commission”, substitute
“Comcare or to the Commission”.
74 Subsection 41(5)
Omit “member of the union”, substitute “member of the
association”.
75 Subsection 43(1)
Omit “produce any documents requested by the investigator”,
substitute “give to the investigator any documents requested by the
investigator or copies of such documents”.
76 Subsection 43(2)
Repeal the subsection (including the penalty), substitute:
(2) A person must comply with a requirement made of the person under
subsection (1).
Note: A person who breaches subsection (2) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
77 Subsection 43(3)
Repeal the subsection (including the penalty), substitute:
(3) A person who gives information that is false or misleading in a
material particular fails to comply with a requirement made of the person under
subsection (1).
Note: If item 300 of Schedule 2 to the Criminal
Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 has
commenced before the day on which this Act commences under subsection 2(1), this
item does not come into operation (see subsection 2(2)).
78 At the end of
section 43
Add:
(4) If a person gives an investigator documents or copies of documents
under subsection (1), the investigator must return them to the person as
soon as practicable after:
(a) they are no longer needed in connection with the conduct of the
investigation; and
(b) either:
(i) a decision is made by the investigator not to use the documents
or copies in evidence for proceedings for an offence against this Act or the
regulations; or
(ii) the documents or copies have been used in such proceedings.
79 Subsection 45(1)
After “person who is”, insert “, or who may reasonably be
presumed to be,”.
80 At the end of subsection
45(3)
Add:
; until the direction has expired, been revoked or been varied.
81 Subsection 45(5)
(penalty)
Repeal the penalty.
82 At the end of subsection
45(5)
Add:
Note: An employer who breaches subsection (5) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
83 At the end of
section 45
Add:
(7) An investigator may revoke or vary a direction given under this
section by giving a written notice to that effect to the person who is, or who
may reasonably be presumed to be, for the time being in charge of operations at
the workplace.
(8) If a direction is varied:
(a) a copy of the text of the original direction and any variations to it
must be included in the notice; and
(b) the person to whom the written notice is given must cause that notice
to be displayed in a prominent place at the workplace:
(i) that is, or a specified part of which is, under the notice, to be left
undisturbed; or
(ii) at which the plant, substance or thing that is, under the notice, to
be left undisturbed, is located;
until the direction has expired, been revoked or been varied;
and
(c) the investigator must take all reasonable steps to notify people who
were notified of the giving of the direction under subsection (1) of the
variation of the direction and the terms of the varied direction.
84 After section 45
Insert:
(1) An investigator may orally direct the person who is, or who may
reasonably be presumed to be, for the time being in charge of operations at the
workplace to ensure that a workplace, a part of a workplace, plant, a substance
or a thing not be disturbed for a specified period if the
investigator:
(a) considers on reasonable grounds that it is necessary to give the oral
direction in order to:
(i) remove an immediate threat to the health or safety of any person;
or
(ii) allow the inspection, examination or taking of measurements of, or
conducting of tests concerning, a workplace or any plant, substance or thing at
a workplace; and
(b) considers on reasonable grounds that there is not adequate time
available to make a direction by written notice under section 45.
(2) The specified period:
(a) must be no longer than the period that the investigator considers on
reasonable grounds is necessary in order to remove the threat or to allow the
inspection, examination, measuring or testing to take place; and
(b) must end no later than 48 hours after the direction is
given.
(3) An employer who has control over the workplace, plant, substance or
thing to which the direction relates, and whose employees use the workplace,
plant, substance or thing in the performance of work for the employer, must
ensure the direction is complied with.
Note: If an employer breaches subsection (3), the
employer may be subject to civil action or a criminal prosecution (see
Schedule 2).
(4) The oral direction ceases to have effect at the earliest of the
following times:
(a) the time when the specified period under subsection (2)
ends;
(b) the time when the oral direction is revoked under
subsection (5);
(c) the time when a direction under section 45 is given if that
direction is made for the purposes of the same investigation and in respect
of:
(i) the same workplace, part of a workplace, plant, substance or thing;
and
(ii) the same threat, inspection, examination, measuring or
testing;
as the oral direction.
(5) The direction may be revoked by informing the person who is for the
time being in charge of operations at the workplace that the direction is
revoked.
(6) The direction cannot be renewed or varied and no other direction under
this section may be made for the purposes of the same investigation and in
respect of:
(a) the same workplace, part of a workplace, plant, substance or thing;
and
(b) the same threat, inspection, examination, measuring or
testing;
as the first mentioned direction.
Note: The heading to section 45 is altered by inserting
“in writing” after
“direct”.
85 At the end of subsection
46(3)
Add:
; and (c) specify a period for compliance with the notice that the
investigator considers on reasonable grounds is sufficient to enable
compliance.
86 Subsection 46(4)
(penalty)
Repeal the penalty.
87 At the end of subsection
46(4)
Add:
Note: An employer who breaches subsection (4) may be
subject to civil action or a criminal prosecution (see
Schedule 2).
88 Subsection 46(6)
Repeal the subsection, substitute:
(6) The notice ceases to have effect when:
(a) an investigator notifies the employer that the investigator considers
that the employer has taken adequate action to remove the threat to health or
safety that caused the notice to be issued; or
(b) the notice is revoked under subsection (11).
89 Paragraph 46(9)(b)
After “displayed”, insert “, until the notice has
expired, been revoked or been varied,”.
90 At the end of
section 46
Add:
(11) An investigator may revoke or vary a notice (the original
notice) given under this section by giving a written notice (the
new notice) to that effect to the person who is, or who may be
presumed on reasonable grounds to be, for the time being in charge of the
activity in respect of which the original notice was issued.
(12) If the original notice is varied:
(a) the new notice must set out the text of the original notice and the
variations to it; and
(b) the text of the new notice must specify a period for compliance with
the new notice that the investigator considers on reasonable grounds is
sufficient to enable compliance; and
(c) the employer must cause a copy of the new notice to be displayed,
until the new notice has expired, been revoked or been varied, in a prominent
place at or near each workplace at which work affected by the notice is being
performed; and
(d) the investigator and employer must take all reasonable steps to give a
copy of the new notice to each person to whom they gave copies of the original
notice.
91 Section 47
Omit “contravening” (wherever occurring), substitute
“breaching”.
92 Paragraph 47(1)(b)
Omit “contravened”, substitute
“breached”.
93 Section 47
Omit “contravene” (wherever occurring), substitute
“breach”.
94 After subsection 47(2)
Insert:
(2A) The notice has effect as soon as it is given to a person under
subsection (1) or (2).
95 Section 47
Omit “contravention” (wherever occurring), substitute
“breach”.
96 Subsection 47(6)
(penalty)
Repeal the penalty.
97 At the end of subsection
47(6)
Add:
Note: A responsible person who breaches subsection (6)
may be subject to civil action or a criminal prosecution (see
Schedule 2).
98 Paragraph 47(8)(b)
After “displayed”, insert “, until the notice has
expired, been revoked or been varied,”.
99 At the end of
section 47
Add:
(10) An investigator may revoke or vary a notice (the original
notice) given under this section by giving a written notice (the
new notice) to that effect to the person who is, or who may
reasonably be presumed to be, for the time being in charge of the activity in
respect of which the original notice was issued.
(11) If the original notice is varied:
(a) the new notice must set out the text of the original notice and the
variations to it; and
(b) the text of the new notice must specify a period that the investigator
considers is reasonable, within which the employer must comply with the new
notice; and
(c) the employer must cause a copy of the new notice to be displayed,
until the new notice has expired, been revoked or been varied, in a prominent
place at or near each workplace at which work affected by the new notice is
being performed; and
(d) the investigator and employer must take all reasonable steps to give a
copy of the new notice to each person to whom they gave copies of the original
notice.
100 After paragraph
48(1)(c)
Insert:
(ca) decides, under section 45, to revoke or vary a direction that a
workplace, a part of a workplace, plant, a substance or a thing not be
disturbed; or
101 Before paragraph
48(1)(d)
Insert:
(cb) decides, under section 45A, to direct that a workplace, a part
of a workplace, plant, a substance or a thing not be disturbed; or
102 After paragraph
48(1)(d)
Insert:
(da) decides, under section 46, to revoke or vary a
prohibition notice; or
103 After paragraph
48(1)(f)
Insert:
or (fa) decides, under section 47, to revoke or vary an
improvement notice;
104 Paragraph 48(1)(k)
Repeal the paragraph.
105 Before paragraph
48(1)(m)
Insert:
(l) a representative association in relation to the designated work group
that includes an employee affected by the decision who has requested the
representative association to make the appeal; or
106 Paragraph 48(1)(m)
Repeal the paragraph, substitute:
(m) if there is no such designated work group and an employee affected by
the decision has requested the employee’s representative association to
make the appeal—the representative association; or
107 Paragraphs 48(2)(d) and
(e)
Repeal the paragraphs, substitute:
(d) if an employee affected by the decision has requested the
employee’s representative association in relation to the designated work
group to make the appeal—the representative association; or
(e) if there is no such designated work group and an employee affected by
the decision has requested the employee’s representative association to
make the appeal—the representative association.
108 Section 50
Repeal the section, substitute:
A person must not:
(a) tamper with any notice, or copy of a notice, that has been displayed
under subsection 44(3), 45(3), 45(8), 46(9), 46(12), 47(8) or 47(11) while that
notice is so displayed; or
(b) remove any notice, or copy of a notice, that has been so
displayed:
(i) in the case of a notice displayed under subsection 44(3)—until
the plant or thing to which the notice relates is returned to the workplace from
which it was removed; or
(ii) in the case of a notice displayed under subsection 45(3), 45(8),
46(9), 46(12), 47(8) or 47(11)—before the notice, or direction to which
the notice relates, as the case requires, has expired or been revoked or a new
notice issued following the variation of the notice or direction.
Note: A person who breaches section 50 may be
subject to a criminal prosecution (see Schedule 2).
109 Section 52
After “Division”, insert “(other than
section 53)”.
110 Subsection 54(2)
Repeal the subsection (including the penalty), substitute:
(2) A person must comply with a requirement under
subsection (1).
Note: A person who breaches subsection (1) may be
subject to a criminal prosecution (see Schedule 2).
111 Section 57
Omit “, without reasonable excuse”.
112 Section 57
(penalty)
Repeal the penalty.
113 At the end of
section 57
Add:
Note: A person who breaches section 57 may be
subject to a criminal prosecution (see Schedule 2).
114 Section 59
Omit “, without reasonable excuse”.
115 Section 59
Omit “refuse or” (wherever occurring).
Note: The heading to section 59 is altered by omitting
“Refusal” and substituting
“Failure”.
116 Section 59
(penalty)
Repeal the penalty.
117 At the end of
section 59
Add:
Note: A person who breaches section 59 may be
subject to a criminal prosecution (see Schedule 2).
118 Section 61
(penalty)
Repeal the penalty.
119 At the end of
section 61
Add:
Note: A person who breaches section 61 may be
subject to a criminal prosecution (see Schedule 2).
120 Section 64
(penalty)
Repeal the penalty.
121 At the end of
section 64
Add:
Note: A person who breaches section 64 may be
subject to a civil action (see Schedule 2).
122 Paragraph 66(1)(a)
After “section 45”, insert “or 45A”.
123 Section 67
Omit “Commonwealth Employees’ Rehabilitation and
Compensation Act 1988”, substitute “Safety, Rehabilitation
and Compensation Act 1988”.
124 Subsection 68(1)
Omit “, and such a report concerning,”.
Note: The heading to section 68 is altered by omitting
“and reporting”.
125 Subsection 68(2)
Repeal the subsection, substitute:
(2) Without limiting the provision that may be made by regulations made
for the purposes of this section, the regulations (not being regulations made
for the purpose of paragraph (1)(b)) may include provisions relating
to:
(a) the time within which notice of an accident or dangerous occurrence
must be given; and
(b) the manner in which the notice must be given; and
(c) the form of the notice.
126 Subsection 70(7)
Omit “the offices of the Commission”, substitute “each of
the offices of Comcare”.
127 Section 71
Omit “contravened”, substitute
“breached”.
128 Section 71
Omit “contravention” (wherever occurring), substitute
“breach”.
129 Section 72
Omit “, without reasonable cause, wilfully or
recklessly”.
130 Section 72
Omit “which the person knew or ought reasonably to have known was
protective equipment or a safety device”.
131 Section 72
(penalty)
Repeal the penalty.
132 At the end of
section 72
Add:
Note: A person who breaches section 72 may be
subject to a criminal prosecution (see Schedule 2).
133 Section 73
(penalty)
Repeal the penalty.
134 At the end of
section 73
Add:
Note: An employer who breaches section 73 may be
subject to civil action (see Schedule 2).
135 Paragraph 74(1)(c)
Repeal the paragraph, substitute:
(c) the safety management arrangements of the Department or
authority;
136 Paragraph 74(1)(d)
Omit “measures”, substitute
“initiatives”.
137 After paragraph
74(1)(d)
Insert:
(da) health and safety outcomes (including the impact on injury rates of
employees and contractors of the Department or authority) achieved as a result
of initiatives mentioned under paragraph (d) or previous
initiatives;
138 Paragraph 74(1)(f)
Repeal the paragraph, substitute:
(f) any investigations conducted during the year that relate to
undertakings carried on by the employer, including details of all notices given
to the employer under section 29, 46 or 47 during the year;
139 Paragraph 74(1)(g)
Repeal the paragraph, substitute:
(g) such other matters as are required by guidelines approved on behalf of
the Parliament by the Joint Committee of Public Accounts and Audit.
140 Subparagraph 75(c)(iii)
Omit “section 45”, substitute “sections 45 and
45A”.
141 Subsection 76(1)
(penalty)
Repeal the penalty.
142 At the end of subsection
76(1)
Add:
Note: An employer who breaches this section may be subject
to civil action (see Schedule 2).
143 Subsection 76(2)
Repeal the subsection.
144 Subsections 77(1) and
(2)
Repeal the subsections, substitute:
(1) Proceedings for a breach of this Act or the regulations may be
instituted by Comcare or by an investigator.
(2) A health and safety representative for a designated work group may
request Comcare to institute proceedings for a breach of this Act or the
regulations in relation to the occurrence of an act or omission if:
(a) a period of 6 months has elapsed since the act or omission occurred;
and
(b) the health and safety representative considers that the occurrence of
the act or omission constitutes a breach of this Act or the regulations;
and
(c) proceedings in respect of the breach have not been
instituted.
(2A) A representative association in relation to a designated work group
may request Comcare to institute proceedings for a breach of this Act or the
regulations in relation to the occurrence of an act or omission if:
(a) a period of 6 months has elapsed since the act or omission occurred;
and
(b) the association considers that the occurrence of the act or omission
constitutes a breach of this Act or the regulations; and
(c) proceedings in respect of the breach have not been instituted;
and
(d) an employee included in the group requests the association to request
Comcare to institute the proceedings.
(2B) A request under subsection (2) or (2A) must be in
writing.
Note: The heading to section 77 is altered by omitting
“prosecutions” and substituting
“proceedings”.
145 Subsection 77(3)
After “subsection (2)”, insert “or
(2A)”.
146 Subsection 77(3)
Omit “involved union”, substitute “representative
association”.
147 After section 77
Insert:
Applications for injunctions
(1) Comcare or an investigator (the applicant) may apply to
a court for an injunction if another person (the relevant person)
has breached, is breaching, or proposes to breach this Act or the
regulations.
Prohibitory injunctions
(2) The court may grant an injunction restraining the relevant person from
breaching this Act or the regulations:
(a) whether or not it appears to the court that the relevant person
intends to breach the Act or the regulations again, or to continue to breach the
Act or the regulations; and
(b) whether or not the body has previously breached the Act or
regulations;
if the body has breached, is breaching, or proposes to breach this Act or
the regulations.
Additional orders with prohibitory injunctions
(3) The court may make an order requiring the relevant person to do
something if:
(a) the court grants an injunction restraining the relevant person from
engaging in actionable conduct; and
(b) in the court’s opinion it is desirable to make the
order.
Mandatory injunctions
(4) The court may grant an injunction requiring the relevant person to do
an act:
(a) whether or not it appears to the court that the relevant person
intends to refuse or fail again, or to continue to refuse or fail, to do the act
or thing; and
(b) whether or not the relevant person has previously refused or failed to
do the act or thing;
if the relevant person has refused or failed, or is refusing or failing, or
is proposing to refuse or fail to do an act, and the refusal or failure did,
does or would constitute a breach of the Act or the regulations.
Interim injunctions
(5) The court may grant an interim injunction:
(a) restraining the relevant person from engaging in conduct; or
(b) requiring the relevant person to do an act;
before deciding an application for an injunction under this
section.
Discharge of injunctions
(6) The court may discharge, or vary, an injunction if an application for
it to do so is made.
No undertakings as to damages
(7) The court must not require the applicant to give an undertaking as to
damages as a condition of granting an interim injunction.
Powers conferred in addition to other powers of the court
(8) The powers conferred on the court by this section are in addition to
(and do not limit) any other powers of the court.
(1) If:
(a) a court makes a declaration under clause 2 of Schedule 2 or
convicts a person of an offence against this Act or the regulations;
and
(b) it appears to the court that the person could fully or partly remedy a
state of affairs that arose as a direct or indirect result of the conduct that
was the subject of the declaration or offence; and
(c) the court has been requested to make an order under this subsection;
and
(d) the court has considered any relevant material given to it by
Comcare;
then the court may order the person to take any steps that it considers are
necessary and appropriate to rectify the state of affairs and that are within
the person’s power to take.
(2) If:
(a) an employer has breached section 64 or 76 in respect of an
employee; and
(b) a court has made a declaration under clause 2 of Schedule 2
relating to that breach; and
(c) the court has been requested to make an order under this subsection;
and
(d) the court has considered any relevant material given to it by
Comcare;
then, if the court considers it appropriate, the court may make any of the
following orders:
(e) an order requiring the employer to reinstate the employee or former
employee;
(f) an order requiring the employer to pay the employee or former employee
compensation of such amount as the court considers appropriate;
(g) an order requiring the employer not to carry out a threat made by the
employer, or not to make any further threat;
(h) injunctions (including interim injunctions), and any other orders,
that the court considers necessary to stop the conduct or remedy its
effects.
Consequential orders
(3) If a court makes an order under this section, it may also make any
other consequential orders (including orders as to costs) that it considers
appropriate.
148 Subsection 78(1)
Omit “an offence against”, substitute “a breach
of”.
149 Subsection 78(2)
Omit “a prosecution for an offence against”, substitute
“proceedings for a breach of”.
150 Subsection 78(3)
Omit “an offence against”, substitute “a breach
of”.
151 Subsection 78(4)
Omit “a prosecution for an offence against”, substitute
“proceedings for a breach of”.
152 Section 79
After “civil proceedings” (wherever occurring), substitute
“(other than proceedings under Part 1 of
Schedule 2)”.
153 Paragraph 79(a)
Omit “contravention”, substitute
“breach”.
154 Section 80
Omit “contravention” (wherever occurring), substitute
“breach”.
Note: The heading to section 80 is altered by omitting
“contravention” and substituting
“breach”.
155 Subsection 80(2)
Omit “contravenes”, substitute
“breaches”.
156 Paragraphs 82(1)(c), (d) and
(e)
Repeal the paragraphs.
157 Paragraph 82(1)(h)
Repeal the paragraph, substitute:
(h) civil or criminal penalties, for a breach of the regulations, not
exceeding:
(i) 50 penalty units for an individual; or
(ii) 250 penalty units for a body corporate.
158 Schedule (heading)
Repeal the heading (including the note), substitute:
Note: See section 5 (definition of Government
business enterprise).
159 Schedule 1
Insert the following entries in their appropriate alphabetical positions,
determined on a letter-by-letter basis:
|
Australian Government Solicitor |
|
Defence Housing Authority |
160 Schedule 1
Omit the following entries:
|
ANL Limited |
|
Health Insurance Commission |
|
Housing Loans Insurance Corporation |
|
Pipeline Authority |
|
Telstra Corporation Limited |
161 At the end of the Act
Add:
The only courts that may exercise jurisdiction under this Part are the
Federal Court of Australia and the Supreme Court of each State or
Territory.
(1) If a court considers that a person has breached one of the following
provisions, or was involved in such a breach, it must make a declaration that
the person has contravened this subclause:
(a) subsection 16(1) (duties of employers in relation to their employees
etc.);
(b) section 17 (duty of employers in relation to third
parties);
(c) subsection 18(1) or 18(2) (duties of manufacturers in relation to
plant and substances);
(d) subsection 19(1) (duties of suppliers in relation to plant and
substances);
(e) subsection 20(1) (duties of person erecting or installing plant in a
workplace);
(f) subsection 21(1) (duties of employees in relation to occupational
health and safety);
(g) subsection 43(2) (requirement to provide assistance and
information);
(h) subsection 45(5) (requirement to ensure compliance with direction that
workplace etc. not be disturbed);
(i) subsection 45A(3) (requirement to ensure compliance with oral
direction that workplace etc. not be disturbed);
(j) subsection 46(4) (requirement to ensure that prohibition notice
complied with);
(k) subsection 47(6) (requirement to comply with improvement
notice);
(l) section 64 (requirement not to prejudice witnesses in
employment);
(m) section 73 (requirement not to levy employees etc.);
(n) section 76 (requirement not to dismiss etc. employees on certain
grounds).
Note: Once a declaration has been made, the court can make a
pecuniary penalty order (see clause 3).
(2) In proceedings for a declaration of contravention under
subclause (1) in relation to a breach of section 76, if all the
relevant facts and circumstances, other than the reason for an action, are
proved, it lies on the person who allegedly breached that section to establish
that the action was not taken for that reason.
(3) A declaration of contravention made under subclause (1) must
specify the following:
(a) the court that made the declaration;
(b) that the subclause was contravened;
(c) any provision listed in that subclause that the person who contravened
it breached or was involved in breaching;
(d) the person who contravened that subclause;
(e) the conduct that constituted the contravention;
(f) the Commonwealth Department or Commonwealth authority to which the
conduct related.
A declaration of contravention is conclusive evidence of the matters
referred to in subclause 2(3).
(1) If a court has declared, under subclause 2(1), a contravention of that
subclause by a person because the person breached, or was involved in the breach
of, a provision listed in that subclause, the court may order the person to pay
the Commonwealth a pecuniary penalty.
(2) The pecuniary penalty must not exceed the amount stated in the table
to be the maximum penalty in relation to the provision concerned.
|
Maximum penalty for breach of provisions listed in subclause
2(1) |
||
|---|---|---|
|
Item |
Provision the person breached, or was involved in the breach
of: |
Maximum penalty: |
|
1 |
subsection 16(1) (duties of employers in relation to their employees
etc.) |
2,200 penalty units |
|
2 |
section 17 (duty of employers in relation to third parties) |
2,200 penalty units |
|
3 |
subsection 18(1) (duties of manufacturers in relation to plant and
substances) |
440 penalty units for a natural person |
|
4 |
subsection 18(2) (duties of manufacturers in relation to plant and
substances) |
440 penalty units for a natural person |
|
5 |
subsection 19(1) (duties of suppliers in relation to plant and
substances) |
440 penalty units for a natural person |
|
6 |
subsection 20(1) (duties of person erecting or installing plant in a
workplace) |
440 penalty units for a natural person |
|
7 |
subsection 21(1) (duties of employees in relation to occupational health
and safety) |
90 penalty units |
|
8 |
subsection 43(2) (requirement to provide assistance and
information) |
30 penalty units |
|
9 |
subsection 45(5) (requirement to ensure compliance with direction that
workplace etc. not be disturbed) |
250 penalty units |
|
10 |
subsection 45A(3) (requirement to ensure compliance with oral direction
that workplace etc. not be disturbed) |
250 penalty units |
|
11 |
subsection 46(4) (requirement to ensure that prohibition notice complied
with) |
250 penalty units |
|
12 |
subsection 47(6) (requirement to comply with improvement notice) |
10 penalty units for each day on which a person breaches subsection
47(6) |
|
13 |
section 64 (requirement not to prejudice witnesses in
employment) |
30 penalty units |
|
14 |
section 73 (requirement not to levy employees etc.) |
250 penalty units |
|
15 |
section 76 (requirement not to dismiss etc. employees on certain
grounds) |
250 penalty units |
(3) The penalty is a civil debt payable to the Commonwealth. Comcare may
enforce the order as if it were an order made in civil proceedings against the
person to recover a debt owed by the person. The debt arising from the order is
taken to be a judgment debt.
(4) In spite of the provisions of any other law, if a fine is imposed
under this clause, a court must not direct that a person serve a sentence of
imprisonment in default of the payment of the fine.
Application by Comcare or investigator
(1) Comcare or an investigator may apply for a declaration of
contravention or a pecuniary penalty order.
No-one else may apply
(2) No person may apply for a declaration of contravention or a pecuniary
penalty order unless permitted by this clause.
(3) Subclause (2) does not exclude the operation of the Director
of Public Prosecutions Act 1983.
Proceedings for a declaration of contravention or a pecuniary penalty
order cannot be started more than 6 years after the alleged breach on which the
proceedings are based.
Proceedings may be instituted under this Act against a person in relation
to one or more contraventions of subclause 2(1). However, the person is not
liable to more than one pecuniary penalty under this clause in respect of the
same conduct.
The court must apply the rules of evidence and procedure for civil
matters in proceedings for:
(a) a declaration of contravention; or
(b) a pecuniary penalty order.
A court must not make a declaration of contravention or a pecuniary
penalty order against a person for a contravention if the person has been
convicted of an offence constituted by conduct that is substantially the same as
the conduct constituting the contravention.
(1) Proceedings for a declaration of contravention or a pecuniary penalty
order against a person are stayed if:
(a) criminal proceedings are started or have already been started against
the person for an offence; and
(b) the offence is constituted by conduct that is substantially the same
as the conduct alleged to constitute the contravention.
(2) The proceedings for the declaration or order may be resumed if the
person is not convicted of the offence. Otherwise, the proceedings for the
declaration or order are dismissed.
Criminal proceedings may be started against a person for conduct that is
substantially the same as conduct constituting a contravention of subclause
2(1), regardless of whether:
(a) a declaration of contravention has been made against the person;
or
(b) a pecuniary penalty order has been made against the person.
Evidence of information given, or evidence of production of documents, by
an individual is not admissible in criminal proceedings against the individual
if:
(a) the individual previously gave the evidence or produced the documents
in proceedings for a pecuniary penalty order against the individual for a breach
of a provision listed in subclause 2(1) (whether or not the order was made);
and
(b) the conduct alleged to constitute the offence is substantially the
same as the conduct that was claimed to constitute the contravention.
However, this does not apply to a criminal proceeding in respect of the
falsity of the evidence given by the individual in the proceedings for the
pecuniary penalty order.
(1) In this clause:
civil penalty proceedings:
(a) means proceedings for a contravention of subclause 2(1); and
(b) does not include proceedings for an offence.
(2) If:
(a) civil penalty proceedings are brought against a person; and
(b) in the proceedings, it appears to the court that the person has, or
may have, contravened subclause 2(1) but that:
(i) the person has acted honestly; and
(ii) having regard to all the circumstances of the case, the person ought
fairly to be excused for the contravention;
the court may relieve the person either wholly or partly from a liability
to which the person would otherwise be subject, or that might otherwise be
imposed on the person, because of the contravention.
(3) If a person considers that civil penalty proceedings will or may be
begun against them, they may apply to the court for relief.
(4) On an application under subclause (3), the court may grant relief
under subclause (2) as if the civil penalty proceedings had been begun in
the court.
(5) For the purposes of applying subclause (2) to a case tried by a
judge with a jury:
(a) a reference in that subclause to the court is a reference to the
judge; and
(b) the relief that may be granted includes withdrawing the case in whole
or in part from the jury and directing judgment to be entered for the defendant
on such terms as to costs as the judge considers appropriate.
(1) Comcare may accept a written undertaking relating to the fulfilment of
an obligation under this Act, if the undertaking is given in writing to Comcare
by a person who is required to fulfil the obligation.
(2) The person must not withdraw or vary the undertaking without the
written consent of Comcare.
(3) If proceedings relating to whether a declaration should be made
against a person under clause 2 have commenced, the court may adjourn the
proceedings if Comcare requests the court to do so on the grounds that Comcare
considers that an appropriate written undertaking by the person under
subclause (1) is in force.
(4) If the court considers that a person has breached a term of an
undertaking, or that the person has withdrawn or varied the undertaking without
the written consent of Comcare, the court may, if it thinks fit:
(a) revive any proceedings adjourned under subclause (3);
or
(b) make an order directing the person to comply with the term (regardless
of whether the person has withdrawn or varied the undertaking) and any
consequential orders it considers appropriate.
This Part does not confer any criminal jurisdiction on the Federal Court
of Australia.
(1) A person commits an offence if:
(a) the person breaches one of the following provisions:
(i) subsection 16(1) (duties of employers in relation to their employees
etc.);
(ii) section 17 (duty of employers in relation to third
parties);
(iii) subsection 18(1) or 18(2) (duties of manufacturers in relation to
plant and substances);
(iv) subsection 19(1) (duties of suppliers in relation to plant and
substances);
(v) subsection 20(1) (duties of person erecting or installing plant in a
workplace);
(vi) subsection 21(1) (duties of employees in relation to occupational
health and safety);
(vii) subsection 43(2) (requirement to provide assistance and
information);
(viii) subsection 45(5) (requirement to ensure compliance with direction
that workplace etc. not be disturbed);
(ix) subsection 45A(3) (requirement to ensure compliance with oral
direction that workplace etc. not be disturbed);
(x) subsection 46(4) (requirement to ensure that prohibition notice
complied with);
(xi) subsection 47(6) (requirement to comply with improvement
notice);
(xii) section 50 (requirement not to tamper with notices);
(xiii) section 72 (interference etc. with equipment etc.);
and
(b) the breach causes death or serious bodily harm; and
(c) the person either:
(i) was negligent as to whether that breach would cause death or serious
bodily harm; or
(ii) was reckless as to whether that breach would cause death or serious
bodily harm.
Note 1: If a person commits an offence under this subclause,
the maximum penalty in relation to the offence is set out in
clause 18.
Note 2: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) Paragraph (1)(a) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subclause (2) (see subsection 13.3(3) of the Criminal
Code).
(1) A person commits an offence if the person intentionally breaches one
of the following provisions:
(a) subsection 54(1) (requirement to give information or produce
documents);
(b) section 57 (failure of witness to attend);
(c) section 59 (refusal to be sworn or to answer
questions);
(d) section 61 (contempt of Commission).
Note 1: If a person commits an offence under this subclause,
the maximum penalty in relation to the offence is set out in
clause 18.
Note 2: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
(2) Subclause (1) does not apply if the person has a reasonable
excuse.
Note: A defendant bears an evidential burden in relation to
the matter in subclause (2) (see subsection 13.3(3) of the Criminal
Code).
(1) An offence against clause 16 or 17 relating to the breach of a
provision is punishable on conviction by a penalty not exceeding the maximum
penalty stated in the table in relation to the provision breached.
(2) Section 4K of the Crimes Act 1914 does not apply to a
contravention of clause 16 in respect of a breach of subsection
47(6).
(3) In spite of the provisions of any other law, if a fine is imposed
under this clause, a court must not direct that a person serve a sentence of
imprisonment in default of the payment of the fine.
Part 2—Transitional,
application and saving provisions
Division 1—Provisions
relating to employers’ duties
162 Definitions
In this Division:
commencement means the time at which item 27 of this
Schedule commences.
OHS(CE) Act means the Occupational Health and Safety
(Commonwealth Employment) Act 1991.
163 Safety management
arrangements
(1) This item applies for the period of 18 months after
commencement.
(2) An employer is not to be taken to breach subsection 16(1) of the
OHS(CE) Act as in force after commencement by reason only of the employer having
failed to develop safety management arrangements under paragraph 16(2)(d) of
that Act.
164 Occupational health and safety
policies
(1) The amendment made by item 27 is not to be taken to affect the
operation, after commencement, of an occupational health and safety policy
that:
(a) was developed under paragraph 16(2)(d) of the OHS(CE) Act as in force
before commencement; and
(b) applied to employees of an employer immediately before
commencement.
(2) However, the policy ceases to apply to the employees once safety
management arrangements have been developed by the employer under paragraph
16(2)(d) of the OHS(CE) Act as in force after commencement, unless those
arrangements provide for the policy to continue to apply.
165 Agreements between employers and involved
unions
(1) The amendment made by item 28 is not to be taken to affect the
operation, after commencement, of an agreement of the kind referred to in
subsection 16(3) of the OHS(CE) Act as in force immediately before
commencement.
(2) However, the agreement ceases to have effect if the occupational health
and safety policy under which it is made ceases to apply.
(3) The amendment made by item 42 is not to be taken to affect the
operation, after commencement, of an agreement of the kind referred to in
paragraph 21(2)(a) of the OHS(CE) Act as in force immediately before
commencement.
Division 2—Provisions
relating to workplace arrangements
166 Definitions
In this Division:
commencement means the time at which item 43 of this
Schedule commences.
OHS(CE) Act means the Occupational Health and Safety
(Commonwealth Employment) Act 1991.
167 Designated work groups
A designated work group in existence immediately before commencement
continues in existence after commencement as if it had been established under
section 24 of the OHS(CE) Act as in force after commencement.
168 Consultations
(1) This item applies for the period of 3 months after
commencement.
(2) If consultations under section 25 of the OHS(CE) Act had begun but
had not been completed before commencement, the consultations are to be
completed as if the amendments made by item 62 had not been made.
169 Health and safety
representative
A person who was the health and safety representative for a designated work
group immediately before commencement continues to hold office after
commencement subject to the OHS(CE) Act as in force after
commencement.
170 Elections
(1) This item applies for the period of 3 months after
commencement.
(2) If, immediately before commencement, an election for a health and
safety representative was being conducted but had not been completed, the
election is to be completed as if the amendments made by this Schedule had not
been made.
171 Applications under
section 32
If an application under section 32 of the OHS(CE) Act had been made
but not determined before commencement, the application is to be determined as
though the amendment made by item 60 had not been made.
172 Health and safety
committees
(1) If a health and safety committee was in existence immediately before
commencement, it continues in existence after commencement as if the amendments
made by items 62 and 156 had not been made.
(2) If:
(a) a health and safety committee was required to be established under
section 34 of the OHS(CE) Act before the commencement of item 62 in
respect of an employer’s employees at a particular workplace;
and
(b) immediately before the commencement of item 62 the committee was
not in existence;
the employer must:
(c) as soon as practicable after the commencement of item 62, write
to the Commission seeking directions relating to the establishment of a health
and safety committee; and
(d) as soon as practicable after receiving directions from the Commission,
establish a committee in accordance with the directions.
(3) A committee continued in existence under subitem (1), or
established under subitem (2), continues in existence until safety
management arrangements have been developed by the employer under paragraph
16(2)(d) of the OHS(CE) Act as in force after commencement.
(4) An employer is not to be taken to breach section 34 of the OHS(CE)
Act as amended by item 62 in respect of the employer’s employees
if:
(a) a committee continues in existence under this section in respect of
those employees; or
(b) the employer is acting in accordance with subitem (2) in respect
of those employees.
Division 3—Miscellaneous
provisions
173 Time of effect of
notices
The amendments made by items 53 and 94 apply in relation to notices
issued on or after the commencement of those items.
174 Reports of
investigation
The amendment made by item 109 applies in relation to an investigation
begun on or after the commencement of that item.
175 Notification of accidents and dangerous
occurrences
The amendments made by items 124 and 125 apply in relation to
accidents and dangerous occurrences occurring on or after the commencement of
those items.
176 Annual reports
(1) This item applies to an annual report under section 74 of the
Occupational Health and Safety (Commonwealth Employment) Act 1991 for the
financial year in which this item commenced.
(2) That annual report is not required to include matters mentioned in
paragraph 74(1)(g) as amended by item 139 of this Act.
177 Regulations prescribing
penalties
Regulations that were:
(a) made under paragraph 82(1)(h) of the Occupational Health and Safety
(Commonwealth Employment) Act 1991; and
(b) in force immediately before the substitution of that paragraph by
item 156;
continue in force as if they had been made under that paragraph as
substituted by that item.